dismissed EB-2 NIW Case: Law

U.S. Department of Homeland Security 
U. S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
FILE: - Office: VERMONT SERVICE CENTER Date: FEB 1 '2 2010 
EAC 06 800 08696 
PETITION: Immigrant petition for Alien Worker as a Member of the Professions Holding an 
Advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) 
of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF REPRESENTED 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been 
returned to the office that originally decided your case. Any further inquiry must be made to that 
office. 
If you believe the law was inappropriately applied or you have additional information that you wish 
to have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 
C.F.R. tj 103.5 for the specific requirements. All motions must be submitted to the office that 
originally decided your case by filing a Form I-290B, Notice of Appeal or Motion, with a fee of 
$585. Any motion must be filed within 30 days of the decision that the motion seeks to reconsider 
or reopen, as required by 8 C.F.R. tj 103.5(a)(l)(i). 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Vermont Service Center on June 22, 2007. The petitioner filed an appeal on July 23, 2007, and the 
Administrative Appeals Office (AAO) rejected the appeal on December 8, 2009 on the basis that the 
petitioner failed to submit his brief in a timely manner. The AAO sua sponte reopens the appeal. 
The appeal will be dismissed. 
The petitioner is an attorney. He seeks to employ himself permanently in the United States as an 
attorney pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(2). The petition is not accompanied by a Form ETA 750 or Form ETA 9089 Application 
for Permanent Employment Certification certified by the Department of Labor. 
The director determined that petitioner failed to demonstrate that his petition should be granted a 
National Interest Waiver and be approved despite the fact that it was not submitted with an 
Application for Permanent Employment Certification certified by the Department of Labor. 
Therefore, the beneficiary cannot be found qualified for classification as a member of the 
professions holding an advanced degree or an alien of exceptional ability. 8 C.F.R. 5 204.5(k)(4). 
The director denied the petition accordingly. 
On appeal and also following the AAO's December 8, 2009 decision, the petitioner asserted that he 
had the requisite experience for the position and that he should be granted a National Interest 
Waiver, as he is providing affordable legal services to low income immigrants living in the United 
States. 
The record shows that the appeal is properly filed and timely. The procedural history in this case is 
documented by the record and incorporated into the decision. Further elaboration of the procedural 
history will be made only as necessary. 
In pertinent part, section 203(b)(2) of the Act provides immigrant classification to members of the 
professions holding advanced degrees or their equivalent and whose services are sought by an 
employer in the United States. An advanced degree is a United States academic or professional 
degree or a foreign equivalent degree above the baccalaureate level. 8 C.F.R. tj 204.5(k)(2). The 
regulation further states: "A United States baccalaureate degree or a foreign equivalent degree 
followed by at least five years of progressive experience in the specialty shall be considered the 
equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the 
alien must have a United States doctorate or a foreign equivalent degree." Id. 
Section 203(b)(2) of the Act also includes aliens "who because of their exceptional ability in the 
sciences, arts or business, will substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States." The regulation at 8 C.F.R. tj 204.5(k)(2) 
defines "exceptional ability" as "a degree of expertise significantly above that ordinarily 
encountered." 
Page 3 
Here, the Form 1-140 was filed in March 2006. On Part 2.d. of the Form 1-140, the petitioner 
indicated that he was filing the petition for himself, a member of the professions holding an 
advanced degree or an alien of exceptional ability. 
The AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. 5 557(b) 
("On appeal from or review of the initial decision, the agency has all the powers which it would have 
in making the initial decision except as it may limit the issues on notice or by rule."); see also, Janka 
v. US. Dept. of Transp., NTSB, 925 F.2d 1 147, 1 149 (9th Cir. 1991). The AAO's de novo authority 
has been long recognized by the federal courts. See, e.g. Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d 
Cir. 1989). The AAO considers all pertinent evidence in the record, including new evidence 
properly submitted upon appeal. On appeal, counsel submits evidence regarding his educational and 
professional qualifications to be an attorney. 
The regulation at 8 C.F.R. tj 204.5(k)(4) states in pertinent part that "[tlhe job offer portion of an 
individual labor certification, Schedule A application, or Pilot Program application must demonstrate 
that the job requires a professional holding an advanced degree or the equivalent of an alien of 
exceptional ability." 
In this case, no approved Application for Permanent Employment Certification has been submitted, 
so the minimum level of education and experience for the position are not clear. The AAO finds that 
the beneficiary does provide affordable legal services to low income immigrants, but that a waiver of 
the labor certification would not benefit the country to a scope of national proportions. Thus, the 
beneficiary does not qualify for a National Interest Waiver and has submitted no new evidence on 
appeal to demonstrate that he meets the requirements of a National Interest Waiver as set forth in 
Matter of New York State Dept of Transportation (AAO, 1998). 
The evidence submitted does not establish that this petition should be granted a National Interest 
Waiver and be approved despite the fact that it was not submitted with an Application for Permanent 
Employment Certification certified by the Department of Labor. Therefore, the beneficiary cannot 
be found qualified for classification as a member of the professions holding an advanced degree or 
an alien of exceptional ability. 8 C.F.R. 9 204.5(k)(4). The appeal must be dismissed. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. tj 1361. The petitioner has not met that burden. 
ORDER: The appeal is dismissed.